The Application of International Law to Systemic Intimate Violence

I am very grateful to IntLawGrrls for the opportunity and space to contribute this guest post discussing my work on systemic intimate violence and international law. The following discussion is based on my book, Domestic Violence and International Law, and the international law dialogue held yesterday at Chatham House on this subject.

The application of international law to domestic violence raises both intuitive and intellectual questions. Is there a right to be free from domestic violence in international law? If there is such a right, what is its substance? And wherever there is a right, of course, we search for the corresponding legal obligation. How do we categorise that obligation in international law and to whom does this obligation apply? Finally, the most intuitive and human of all questions, how can the broad – and by definition – global network of international law possibly assist people in the most intimate and private contexts of their lives?
I address these problems in the book Domestic Violence and International Law. The book emanates from the tragic uniformity of domestic violence stories by women around the world. Equally disquieting is the uniformity of the state’s non-response. In the face of severe acts of domestic violence, including battering, breaking, burning, raping, hacking forced sexual encounters with third parties, threats of harm, verbal denigration and murder, the state is silent. The remedies that exist in the public world simply fail to permeate into the private sphere to attenuate intimate harm.
In this discussion, I will consider firstly whether there is an authoritative right in international law to be free from domestic violence and, if so, what the substance of that right should be. I then consider the corresponding state obligation. And finally I address the most intuitive question, namely, how can international law benefit victims and survivors of systemic intimate violence?
Assessing the existence of a right in international law is difficult. There is no central law-making authority. According to the statute of the International Court of Justice (art 38), there are four sources of international law, namely, treaties, customary international law, the law of (so-called) civilised nations and finally, the jurisprudence of courts and tribunals and the writings of respected scholars. In the book I analyse these sources of law and conclude that, on a strict, black letter legal analysis, it is not clear that there is an authoritative principle in international law that states have an obligation to prevent domestic violence; however, I argue that we are in the amorphous process of norm crystallisation. We are on an irreversible trajectory towards an obligation in international law on states to protect victims and survivors of domestic violence.
This is evident from the following developments in international law. The first is the work of the special rapporteur on torture, who categorises domestic violence as a form of torture, prohibited under the Torture Convention. The second is the landmark ruling by the Inter-American Court of Human Rights in the ‘Cotton Field’ case, in which the Court held that Mexico was in breach of the Inter-American Convention on Human Rights and the Convention of Belem do Para for failing to investigate the disappearance and murder of women over a period of 15 years. Many of these deaths and mutilations were linked to domestic violence. There are also intense developments in Europe. In 2005 the Council of Europe Task Force to Combat Violence against Women, including Domestic Violence (EG-TFV) was established. This has led to developments regarding the adoption of a Europe-wide treaty regarding violence against women and domestic violence (the second draft of a CoE convention against violence against women has been distributed). The final important development is the decision of the European Court of Human Rights in the case of Opuz v Turkey (which has previously been discussed on this blog here), where the Court held that Turkey’s failure to respond to twelve years of domestic violence amounted to a violation of the right to life (art 2 of the European Convention); a violation of the right to be free from torture and ill-treatment (art 3 of the European Convention); and a violation of the right to non-discrimination on the basis of sex (art 14).
If we are to take steps to formalise an authoritative international law obligation on states to prevent and respond to domestic violence, it is important to specify the details of the right and the corresponding duty. As regards the right, I propose that not all forms of domestic violence should trigger the provisions of international law. Rather, it is a specific type of violence, what I refer to as systemic intimate violence, which warrants the application of international law. Systemic intimate violence consists of five co-existing elements. The first element is severity – the harm must be severe and can consist of both physical and non-physical violence. There are two important points to make here. I am not suggesting that severity of harm is a test for all forms of domestic violence. Rather it is severity of harm that is an element for systemic intimate violence under international law. This is uncomfortable but necessary. International law regularly distinguishes between degrees of harm (torture v ill-treatment; genocide v murder; mass rape v rape) and it is a form of prolonged, severe harm that triggers in global network of law. If domestic violence is attended to by the state, then in essence the right to protection has been fulfilled. What we examine in international law is where prolonged, severe harm is unaddressed. The test for severity in international law is an objective one (A v United Kingdom) and we ask whether the humiliation to the victim is so intense that a reasonable person would be outraged (Prosecutor v Aleksovski). The following stories of torture, compared to stories of domestic violence, are informative:

I was lying on the floor, two guards held my legs while another kicked me in the testicles. I would lose consciousness and come to, I lost consciousness four times. They hit me around the head, there was blood. They would beat me unconscious and wait until I came round: ‘He’s woken up, and they would come in and beat me [again].

-- Chechnyan survivor of torture by the Russian Army

From the moment Rodi Adalí Alvarado Peña married a Guatemalan army officer at the age of 16, she was subjected to intensive abuse, and all her efforts to get help were unsuccessful. Her husband raped her repeatedly, attempted to abort their second child by kicking her in the spine, dislocated her jaw, tried to cut off her hands with a machete, kicked her in the vagina and used her head to break windows.

-- Guatemalan Woman

[F]irst they would beat you and then you would have to lie down on the floor and crawl to them. You would have to say, “Request permission to crawl.” Me personally, they beat me on the knees, with clubs, and on the kidneys.

-- Chechnyan survivor of torture by the Russian Army

He was sittin’ on the bed. Had his .357 Magnum. He said, ‘June, you get down on this floor right now. You crawl to me.’ And when I got to his feet he took that pistol and hit me right alongside of the head. I thought I was gonna die. I still got the knot from it. He said, ‘if you even act like you’re gonna run I’ll blow your brains all over this wall.’

-- American Woman

The theme of severity of harm that is so intense that it would outrage the reasonable person, is evident.
The second element is that the violence usually operates on a continuum. The exigency of harm may not be in individual incident but in prolonged frequency of events. This is particularly important in domestic violence where violence is cyclical and individual acts seem benign but actually occur along a continuum of control and impotence. The notion of a continuum of harmful incidences was confirmed by the ICTY, noting that it was “sufficient to show that an act took place in the context of an accumulation of acts of violence which, individually, may vary greatly in nature and gravity”(Prosecutor v Kunarac). This element also featured in the Opuz decision: “Although there were intervals between the impugned events… the overall violence to which the applicant and her mother were subjected over a long period of time cannot be seen as individual and separate episodes and must therefore be considered together as a chain of connected events.”
The third element of systemic intimate violence is that intimacy. This is an important element for several reasons. The intimacy of helps to ‘disappear’ the violence, preventing the abused from reporting it and the authorities from recognising it. The reality, however, is that the highest rate of violence against women occurs in private relationships. Privacy presents an additional problem: the constitutional right to privacy traditionally is understood as a negative obligation to refrain from interfering with one’s private affairs. However, the ECtHR (Bevacqua and S v Bulgaria and Opuz v Turkey) and the CEDAW Committee (Yildirim v Austria; Goekce v Austria) have recognised that the right to privacy is also a positive obligation to secure the private realm so that individuals may flourish. Privacy cannot be understood merely as a right to be left alone; it is linked affirmatively to the right to liberty, the right to autonomy and self-determination.
The fourth element is group vulnerability. This is not to say that women have some essentialized element of vulnerability and weakness but rather that the legal system, to which women look for assistance, often is inert. Women as a group are affected by domestic violence more than any other group (such as children, the elderly, the disabled, men and non-human animals) and the greatest cause of death and disability among women aged 15-44 worldwide – more than HIV, TB and malaria – is domestic violence.
The final element is that of state failure. In the face of extreme or continued violence, in the private realm, occurring repeatedly against a particular social group, the state is unable or unwilling to respond. This is evidenced by the sad cases of Kontrova v Slovakia and Opuz v Turkey, where the claimants in both cases suffered years of severe physical and non-physical violence, resulting in the death of their children and mother, respectively.
These are the elements of systemic intimate violence.
The next step is to identify the principles of state responsibility in international law and how they might apply in the context of systemic intimate violence. The principles of state responsibility are codified in the International Law Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts. In order to determine whether a state has committed an international wrongful act, there must be (i) conduct and (ii) wrongfulness. A state can be responsible for both positive acts and for omissions or a failure to act. In the Corfu Channel case, the ICJ held that Albania had known that there were mines in its territorial waters and had failed to notify third parties about this danger. As a result, Albania had committed an internationally wrong act, not because it had laid the mines but because it has failed to warn third parties about their presence.
If the state fails to act where it has an international legal obligation to do so, the wrongfulness test asks us to consider what steps a state ought to have taken to fulfill this legal duty. The approach adopted in international law is the so-called due diligence standard. The principle, originally enunciated in the case of Velasquez Rodriguez v Honduras and fortified by the UN special rapporteur on violence against women, holds that an illegal act, committed by a private person, can lead to international responsibility of a state, not because of the act itself, but because of the lack of due diligence to prevent the violation or respond to the harm.
How does this apply to cases of systemic intimate violence? The test can be summarised as follows: (i) did the authorities know, or ought they to have known, at the time of the existence of a real and immediate risk to the life or well-being of an identified individual from the criminal acts of a third party; and, if so (ii) did the state fail to take measures within the scope of its powers, which, judged reasonably, might have been expected to avoid that risk. This test can be answered in the affirmative in the Kontrova case, where the state knew about the history of violence against the complainant when the complainant reported that her estranged husband had taken their children. The state refused to act until the passage of 48 hours. During this time the complainant’s estranged husband shot and killed their two children and then himself.
The final question is how there can be any benefit in international law for people who experience systemic intimate violence. I propose a theory of non-coercive compliance, which, based on the work of Professors Koh and Reisman, focuses on the impact of international law through norm infiltration. International law is a standard-setting spectrum, to which states can aspire and on which individuals can rely. Fuelled by international actors, NGOs, international bodies and trans-national organisations, international law can effect global change in intimate settings. Specifically, international law human rights law has two functions. The first is an expressive value: international law gives a name to harm that previously fell outside established legal principles and draws a conceptual boundary around such conduct, prohibiting it. Secondly, international law has an implementing capacity, compelling state to modify their laws in accordance with the international standards.
These values of international law are best evidenced in respect of enforced disappearances. Traditionally, the legal remedies of habeas corpus and extra-judicial killings were not available to the families of the kidnapped political dissidents because the state denied involvement. It was only with the development of the concept of enforced disappearances and the lobbying at the international level, that the nuanced nature of this harm was properly understood and an appropriate legal response fashioned. Today the UN working group on enforced disappearances has clarified roughly 1,763 cases.
These benefits are also evident in respect of systemic intimate violence. An analysis of the CEDAW Committee’s reports from 1984 to present day reveals an interesting pattern. Prior to 1992 domestic violence is rarely mentioned in states’ reports to CEDAW or in the CEDAW committee’s responses. After 1992, however, domestic violence becomes the key feature of states’ reports and of the committee’s response. What happened in 1992? This period saw the greatest global call at the time regarding violence against women and the responsibility of states to prevent domestic violence. It culminated in the General Assembly Declaration on the Elimination of Violence against Women.
I analysed three states’ reports to CEDAW before and after 1992, namely, Nicaragua, Sweden and Mexico. In respect of each state the same pattern applies. Prior to 1992 there is no mention of domestic violence. After 1992 the states begin the process of describing law reform, policy creation and the allocation of funding to the problem of domestic violence. So international law not only facilitated a dialogue regarding domestic violence against women at international law but it led to significant legal changes at the national and municipal level.
This is not to overstate international law. Rather it demonstrates that international law works best when viewed as a forum for the creation of norms and standards that, through a process of norm creation and infiltration, can alleviate harm in the most intimate part of one’s life.

Enforcing Roma Rights

Last month, the European Roma Rights Centre (ERRC) filed a complaint against Portugal under the Revised European Social Charter, charging violations of the rights to housing and non-discrimination as well as the rights of the family to social, legal, and economic protection and the right to protection against poverty and social exclusion. The Charter, originally drafted in 1961 and revised in 1996, protects a broad range of negative and positive social and economic rights that are not fully covered by the European Convention on Human Rights.
The Charter has been signed and ratified by most European nations, from Albania to the United Kingdom, and fourteen states, including Portugal, have accepted its collective complaint procedure. This mechanism allows certain trade unions and international NGOs to file against member states claims that are adjudicated by the European Committee of Social Rights (ECSR), a group of fifteen independent experts. Where the Committee of Social Rights finds a violation of the Charter, the Council of Europe's Committee of Ministers adopts a recommendation to the relevant State Party. While the Committee of Social Rights is far from attaining the stature of the European Court of Human Rights, it is increasingly being used as a venue for vindicating social and economic rights in Europe. Sixty-one complaints have been filed through the collective complaint procedure since its creation in 1998, with nearly half of those complaints filed since 2006.
The European Roma Rights Centre's current claim against Portugal is based on

problems of access to social housing, substandard quality of housing, lack of access to basic utilities, residential segregation of Romani communities and other systemic violations of the right to housing. . . compounded by a lack of practical access to effective legal remedies for redress.

This is the seventh complaint filed before the Committee of Social Rights by the Centre, which has presented similar housing claims against Bulgaria, France, Greece, and Italy, creating an ECSR jurisprudence on which it can draw. Moreover, the ERRC "aims to establish beyond any doubt that the right to housing, particularly concerning vulnerable groups such as Roma, is firmly entrenched in international law" by drawing from existing treaty law, including the European Convention on Human Rights, and relevant soft law.
The ERRC's strategy and the ECSR itself present interesting models for the enforcement of social and economic rights of migrants, though it's hard to imagine the creation of a similar mechanism to which the United States would submit itself. In the wake of frightening state experiments with immigration law, though, it's worth considering how we might start taking the first steps towards creating an equally robust human rights regime right here in North America. A distant dream, but one worth pondering nonetheless.

How transnational law develops

(Part 2 of a 3-part guest post by Mireille Delmas-Marty)

Having introduced a comparison of French and U.S. approaches to legal pluralism in a transnational legal world develops, we now consider answers to our threshold question: How does the transnational legal world develop?
Transnational law develops through:
► cross-referencing,
► efforts to harmonize, and
► creation of hybrid rules of substance and procedure.
In both the European and the U.S. legal systems, the last method is rarely used. It is true that some hybrid rules have been created. An example is the hybridisation of the accusatorial and inquisitorial criminal procedure rules that occurred first in the ad hoc tribunals and later at the International Criminal Court. But these rules – which increase judicial powers in the preliminary phase, transmit dossiers to the trial judge, and accord more prominent roles to victims – do not directly affect national legal orders.
In the United States, much has been debated about the 1st option, called cross-referencing or, sometimes, consultation; that is, the citation by U.S. judges of decisions handed down by judges of foreign constitutional and international courts. Most salient are 2 U.S. Supreme Court judgments, Lawrence v. Texas (2003) and Roper v. Simmons (2005). The latter issued during a Term when the Court considered or referred to foreign law in at least 6 cases, according to Justice Stephen G. Breyer (above). In his foreword to my book Ordering Pluralism (trans. Naomi Norberg 2009), Breyer wrote that "six out of a total docket of 79 indicates the increasingly routine nature" of this method in American cases.
In France, meanwhile, the main concern is the middle option, harmonisation. Jurists focus on the changes that European efforts to harmonise different national systems imposes on criminal, contract, and other sectors of French law.
Harmonisation is a very complex process, entailing both more and less integration than either of the other 2 options:

Harmonisation and cross-referencing
Compared with cross-referencing, harmonisation requires more integration. Cross-referencing assumes the priority of domestic law; in contrast, harmonisation involves a hierarchy in which an abundance of international law is binding on the national legislative authority. That international law derives, moreover, from both poles of the bipolar European legal system discussed in my last post:
► Respecting the European Union pole, France’s Conseil d’État (right) observed in 2000 that since the 1960s the Community had produced more than 68,000 acts supposed to be integrated to French law.
► Respecting the Council of Europe pole, the indirect effects of decisions by the European Court of Human Rights (below left) against France must be noted. In 1990 that Court condemned France twice -- in Huvig and Kruslin, which challenged wiretapping without any legal basis -- and France adopted a new law within a year. In Medvedyev (2008), a Court panel ruled that in France the prosecutor is not independent enough to satisfy the due process principle enshrined in Article 5 of the Convention on Human Rights and Fundamental Freedoms. Should the Court’s Grand Chamber confirm this finding of violation, the French government likely will have to delay and revise a pending plan to transfer more power from the investigating judge to the prosecutor, about which I wrote an op-ed last summer. (Prior IntLawGrrls post)

Harmonisation and hybridisation
Compared with the 3d option of hybridisation, however, harmonisation involves less integration This is because each member state enjoys a margin of appreciation that precludes application of strictly identical rules throughout Europe. As articulated in Handyside v. United Kingdom (1976) and later judgments, the margin-of-appreciation concept operates to limit the jurisdiction of the European Court of Human Rights, particularly in areas in which differences among members states are so strong and so deeply linked to national cultures that it seems impossible for international judges to impose the same rule on every state. Examples include areas such as abortion, euthanasia, and privacy. The national margin of appreciation excludes binary reasoning: it imposes not an obligation of strict conformity, which bars all variation, but rather an obligation of compatibility, which permits some differences in application of European legal norms.
In short, the margin of appreciation involves gradation-based reasoning -- fuzzy logic, as I have called it -- and accepts incomplete integration.
Not all differences are accepted, however. The concept preserves some gradation of integration, for it assumes limits which must not be exceeded. Examples:
► Abortion may be subject to limitations by the state that are strict, as in Ireland or Poland, or not so strict, as in Germany. But, as the Court established in Tysiac v. Poland (2007), the domestic law must effectively implement the Europe-wide right to abortion.
► Wiretapping may be controlled very differently in each European national system -- by administrative authority, for instance, or by a judge or a parliamentary commission. The Court has not relinquished its right to review such mechanisms, but has limited review to those deemed incompatible with Europe-wide norms.
This graduated approach has some resonance among U.S. jurists. Justice Breyer proposed in Heller (2008), which entailed "review of gun control regulation," U.S. courts ought to embrace an "interest balancing inquiry." Breyer considered deference to legislative appreciation to be "particularly appropriate" given that the decision was made "by a local legislature, with particular knowledge of local problems and insight into appropriate local solutions." The consequence is that different localities may seek to solve similar problems in different ways. Breyer’s dissenting opinion in Heller:

The Framers recognized that the most effective democracy occurs at local levels of government, where people with firsthand knowledge of local problems have more ready access to public officials responsible for dealing with them.

(internal quotation marks omitted) This statement is not so different from those in which the European human rights court has considered that national courts are better situated than European judges to determine the proper scope of restrictions based on public order.

(Still to come in this 3-part guest post: Part 3, on where and when transnational law develops; here. Part 1, which introduced comparison of French and U.S. approaches, is here.)

Hate crimes online

(My thanks to IntLawGrrls for this opportunity to guest post)

Hate crime is part of our history. Europe has been plagued by pogroms as much as by witch-hunting and other forms of prejudices; the United States has not escaped either this violence, nor have countries in Asia, Australasia and Africa.
Yet, the expression “hate crime” has only been recently coined. This development illustrates how much perception of prejudice as a potent component of crime has changed during the last three decades. Hate is not any more a “fact of life”, but a harmful and unacceptable feeling to be criminalized.
Even though hatred is universal, hate crime legislation is not. As I detail in my forthcoming article, Hate Crime in Cyberspace: The Challenges of Substantive Criminal Law, this legislation varies from country to country, reflecting the needs and values of each society.
This diversity in national legislation would not matter so much if hate had not found a new medium to spread and reach others across the borders of nation-states. In cyberspace many media -- e-mails, chats, forums, billboards, websites, blogs -- are used to publish or distribute hateful messages, either to individuals or to groups. (credit for map of the Internet)
Hate crime on the Internet evokes hate speech. Yet, to assimilate one with the other would not do justice to the diversity of behaviours encompassed by the expression “hate crime”.
It is in that sense that a protocol that the Council of Europe adopted on 28 January 2003 -- the Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of Acts of a racist and xenophobic nature committed through computer systems -- is misleading. Hate crime online, as offline, does not focus solely on race. It can target sexual orientation, disability, and, in some countries, like Turkey, social class. More importantly, hate crime is not limited to the dissemination of materials, to threats, insults and denial of the Holocaust; rather, it can encompass a variety of offences. These range from computer misuse (hacking and unauthorized acts impairing or with intent to impair the functioning of computers/networks), to fraud criminal damage (if the offence is not limited to tangible objects as in Britain), to harassment (which often starts online and spills to the physical world). With the emergence of virtual communities or virtual worlds, hatred finds new forms of expression.
Indeed, consider the online, virtual community of Second Life. The Front National, the French political party that defends racist and xenophobic ideas, has an office there. Second Life avatars thus can be subjected to hatred, and by this means the human player can suffer offence, even though the player's avatar may possess a different race, sexuality, religion, etc.
In such a context, how do we capture hate crime? What is to be done about criminal damage, even fraud (one example of new opportunities to defraud is here)?
These are developments that countries will have to tackle.

On November 4

On this day in ...

... 2008 (today), rallies that above having come to an end, voters in the United States enter ballot booths to choose their next President and other officials and, in states like California, to decided a plethora of ballot propositions. (Arizonans vote on a ballot initiative on ballot initiatives.) If you're registered and did not vote early, don't forget to vote today!

... 1950, in Rome, representatives of the member states of the Council of Europe signed the Convention for the Protection of Human Rights and Fundamental Freedoms (left; photo credit). This landmark European Convention entered into force, with 10 ratifications, on September 3, 1953. Today it has 47 states parties.

Internet Jihad and Free Speech

It's not my role to set off bombs - that's ridiculous," she said in a rare interview. "I have a weapon. It's to write. It's to speak out. That's my jihad. You can do many things with words. Writing is also a bomb.

So says Malika El Aroud, a 48-year-old Belgian "female holy warrior for Al Qaeda" who will not take up arms herself, but encourages men and other women to do so via internet--her weapon of choice since her suicide-bomber husband blew up not only himself, but the anti-Taliban Afghan General Ahmed Massoud, 2 days before the September 11, 2001 attacks in the US.

Both the Council of Europe's 2005 Convention on Terrorism and the European Union's amended 2002 Framework Decision on Terrorism encourage European states to criminalize incitement to terrorism. So-called internet jihad will no doubt be one of the first testing grounds for protecting speech in the struggle against terrorism.

(IntLawGrrl Diane Marie Amann continues this discussion in a post below.)

On May 7

On this day in ...
... 1832, a protocol was signed by Bavaria and other states in London, by which Greece was declared an independent kingdom, to be ruled by Prince Otto of Bavaria, with an indemnity being paid to the Ottoman Empire for loss of the territory.
... 1948 (60 years ago today), began a congress at The Hague, Netherlands, at which states' diplomats started discussing the possibility of European intergovernmental cooperation. They further "adopted a resolution calling for the drafting of a charter of human rights and the setting up of an independent European court to enforce them"; eventual results would include the Council of Europe, with its various intergovernmental units, and the European Court of Human Rights.

Irish High Court suggests Article 8 European Convention rights for same-sex couples

The Irish High Court yesterday handed down judgment in a case involving a man who had donated sperm to a lesbian couple on foot of an agreement between them that, while he was to have ‘favoured uncle’ status, he was not to be involved in parenting in any way. Once the baby was born the donor attempted to play a parental role, including by acquiring an injunction to prevent the couple and their child from travelling to Australia for a year. Yesterday Mr Justice John Hedigan held that the man has misled the couple as to his true intentions and had nothing more than a biological connection with the child; the child and his mothers, on the other hand, could be said to constitute a family within the meaning of Article 8 of the European Convention on Human Rights. Justice Hedigan recommended legislative action in relation to same-sex couples in Ireland including provisions relating to situations where a couple may wish to parent and for one of them to bear a child. The judgment appears not yet to be available online, but the RTE News report is here.
The judgment is significant not only because of its timing (the heads of a proposed Civil Unions Bill are expected to be released by the Irish government shortly), but also because Justice Hedigan’s holding that the couple and their child could enjoy the right to family life under Article 8 is an advancement of the jurisprudence of the European Court of Human Rights on whether same-sex couples with or without children can be regarded as ‘family’ under Article 8.
The Strasbourg-based court (below right) has not yet definitively considered whether a same-sex cohabiting couple constitutes a unit entitled to respect for their family life under Article 8 (although in cases such as Karner v Austria (2003) it has protected same-sex couples under the rubric of privacy). In an earlier decision of the European Commission of Human Rights (an entity since consolidated with the court), it was held that the relationship between two women and the child of one of them did not constitute family life. In Kerkhoven & Hinke v Netherlands (1992), the Commission had noted that there was no legal impediment to the three living together in the Netherlands but acknowledged that the difficulty lay in the non-biological parent establishing legal links with the child. The Commission acknowledged that such a legal relationship would have important practical implications for the child and non-biological parent, however they felt that the fact that the relationship between the two women did not constitute family life meant that there was no obligation on the state to allow the establishment of such a legal relationship. As Kerkhoven was a Commission decision, as opposed to a decision of the Court, the reasoning is not greatly elaborated upon. In fact little or no justification is offered by the Commission for this conclusion.
Kerkhoven again arose for consideration, however, within the context of X, Y & Z v United Kingdom (1997). This case concerned a family unit comprising a woman, her biological child and a post-operative female-to-male transsexual. The couple had been together since 1979 (just before his gender realignment surgery) and the child was born in 1995 (after the gender-realignment surgery). The child had been born by means of artificial insemination which, after some substantial effort on the part of the couple, had been provided and funded by the National Health Service. X had attempted to be registered as the father of the child on his birth certificate but was informed that only a “biological man” could be so registered. This application claimed that this decision was a breach of the unit’s right to family life, particularly given the practical benefits of such legal recognition of the relationship between X and the child (whose birth certificate was left blank under ‘father’). The Government first claimed that no family life existed between the couple as they were to be regarded as two women living together. The Court considered that X and Y could not be considered as two women living together as they lived, socially, as man and woman and, as a result, apart from the legal prohibition on marrying their relationship was indistinguishable from that between a man and a woman. In the circumstances, and in particular with regard to X’s involvement in the AID process from the beginning and the close and de facto personal ties enjoyed between the three applicants, the Court found that they could be regarded as a unit deserving of protection for their family life. Significantly the Court did not substantially revisit Kerkhoven in this decision, rather it focused on the three together and the social reality of the relationship between the couple. In the end the Court held that there had been no violation of Article 8 by precluding the registration of X as father on he birth certificate because of the transitional stage of the law, the lack of a sophisticated personal identity register system in the UK and the relative unimportance of a birth certificate in legal terms.
These decisions, however, took place against a very different politico-legal background to the one currently in existence in the Council of Europe – nowadays a great number of COE states have some kind of legislative framework concerning the rights of same-sex couples and, in some cases, any children they may be raising and the visibility of same-sex families and ‘gay parenting’ is much increased. In addition, the European Court of Justice (left), the Luxembourg-based court of the European Union, has recently expanded the recognition of same-sex couples, including in the context of pension entitlements, where the partners “live in a union of mutual support and assistance which is formally constituted for life” (Maruko, 1 April 2008). Taking into account the margin of appreciation and the importance in ECHR jurisprudence of the emergence of ‘consensus’ across much of the COE member states, the conclusion that appears to have been reached by Justice Hedigan yesterday would likely now be reached by the Strasbourg Court in an analogous current case.

(This is cross-posted from the blog of the Centre for Criminal Justice and Human Rights, Faculty & Department of Law, University College Cork, Ireland)

The Law of Bananas

What is it about bananas? In addition to being the source of humorous (and not so humorous) jokes, this single fruit has created empires, and single-handedly financed the careers of many of us in international trade law! In the interest of full disclosure, I’ll admit that a few months ago I was hired for a U.S.-funded project to aid Ghana in developing its banana export program. But the Banana Trade Wars has been around long before I was. And less than two weeks ago, the WTO handed down yet one more decision in an ongoing saga. What is it all about?
Bananas are a crop like no other. For some developing countries, international trade in bananas represents no less than the economic lifeblood of a nation. But since 1993 the European Union, the second biggest importer of bananas in the world, has sought to regulate imports of the crop. It adopted a Byzantine system of quotas, country-specific quota allocations, tariffs, licenses and preferential duties, which purportedly sought to provide price stability in the EU while also providing a reliable, consistent and profitable market for some African Caribbean and Pacific countries (ACP). The problem is that the EU’s system pits ACP countries against Latin American countries, small suppliers against major ones, and Chiquita bananas against the European Commission.
The matter has been the subject of dispute ever since the good old days of GATT, and in 1995 the United States resurrected the question once more by filing a claim in the WTO. The EU has consistently lost, and it has continued to tinker with its system without a full overhaul. On Feb. 8, it lost again. When will it all end?

Path to adoption eased in Europe

By a 10-7 margin the Grand Chamber of the European Court of Human Rights has ruled that France's refusal to permit a lesbian from adopting a child violated Europe's Convention on Human Rights.
E.B., a teacher in France's national nursery school system, had been in a longterm relationship with R, a psychologist. After the Conseil d'Etat refused to grant E.B. an authorization to adopt -- France reasoned that the child would suffer from lack of a "paternal referent," E.B. sought relief from the ECHR.
The Court ordered France to pay E.B. 10,000€ plus 14,528€ for court costs, finding violations of 2 provisions of the Convention, which is binding on all 47 member states of the Council of Europe:
► Article 8, freedom of interference with private and family life. On this, the Court wrote in ¶ 43 (citations omitted) that it had

previously held that the notion of “private life” ... is a broad concept which encompasses, inter alia, the right to establish and develop relationships with other human beings, the right to “personal development” or the right to self-determination as such. It encompasses elements such as names, gender identification, sexual orientation and sexual life, which fall within the personal sphere..., and the right to respect for both the decisions to have and not to have a child.

► Article 14, freedom from discrimination -- this was held to apply even though the provision does not explicitly protect individuals from discrimination on account of sexual orientation.
Voting with the majority in favor of E.B. were Judges: Nicolas Bratza, ECHR Vice President (Britain); Peer Lorenzen (Denmark); Françoise Tulkens (Belgium); Ireneu Cabral Barreto (Portugal); Elisabeth Steiner (Austria); Elisabet Fura-Sandström (Sweden); Egbert Myjer (Netherlands); Dragoljub Popović (Serbia); and Sverre Erik Jebens (Norway). Dissenting were Judges: Jean-Paul Costa, ECHR President (France); Boštjan Zupančič (Slovenia); Loukis Loucaides (Cyprus); Antonella Mularoni (San Marino); Riza Türmen (Turkey); Mindia Ugrekhelidze (Georgia); and Danutė Jočienė (Lithuania).
Even as a spokesman for France's Association of Gay and Lesbian Parents (logo on balloon in photo) rejoiced that "'homosexuals would no longer have to hide themselves in order to adopt,'" gays and lesbians in Belgium warned against premature celebration. Le Monde reported: "Their reservations can be explained by a stark observation: in their country, where homosexuals have not only the right to marry but also, since May 2006, to adopt, not one couple has managed to open a file for international adoption. Belgium's 2006 law, they said, is an "'empty vessel.'"

On January 12, ...

... 1915, after debating the issue "from every point of view" for more than 10 hours, the U.S. House of Representatives, "by the overwhelming vote of 174-204," rejected a proposed constitutional amendment that would have given the vote to women throughout the country. It would be another 5 years before women secured that right in the 19th Amendment.
... 1998 (10 years ago today), at a meeting in Paris, 19 member states of the Council of Europe signed a ban on human cloning. Once ratified, the document, entitled the Additional Protocol to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, on the Prohibition of Cloning Human Beings, was to become part of the Council of Europe's 1997 European Convention on Human Rights and Biomedicine. (image credit)
... 1950, U.S. Rep. Sheila Jackson Lee (D-Tex.) was born in New York City.

A world of discussion about the death penalty

Often an item on international agenda, capital punishment is again a topic of legal discourse inside the United States.
Views from elsewhere:
Of the 47 states comprising the Council of Europe, 46 have ratified Protocol No. 6 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, which abolishes the death penalty in nearly all circumstances (Russia's the lone holdout). Nearly all are states parties to Protocol 13, which puts a total ban on the penalty. Ratification of similar treaties in other regions, such as the inter-American system, is less consistent. Last week, as our Opinio Juris colleague Kevin Jon Heller posted, the Third Committee of the U.N. General Assembly's given its support, by a vote of 99 "yes," 52 "no," 33 "abstain" -- to a draft resolution calling for abolition of capital punishment. For news media at home and abroad, the United States' opposition to the draft was taking "sides with Iran and Sudan"; it was, in the rough words of Der Spiegel, "in bed with dictators."
It's against this backdrop that U.S. discussion's heating up at 2 different sites:
1st is the U.S. Supreme Court. It's considering the constitutionality of the methods that states use to execute condemned persons by lethal injection, the means employed in nearly every state that retains the death penalty. Oral argument will take place on January 7, 2008, in Baze v. Rees, the case whose pendency appears to have effected a de facto national moratorium on executions, although on a case-by-case rather than across-the-board basis. (Nor may this be the Court's only opportunity to mull the death penalty this Term. The Court likely soon will consider a petition to review a challenge to a state law authorizing execution as punishment for a nonfatal sexual assault on a child, Kennedy v. Louisiana, according to a SCOTUSblog report.)
2d is the American Law Institute, an association of lawyers, judges, and academics devoted to the study and drafting of law-reform measures. A current project involves revisions in the sentencing provisions of the Model Penal Code that ALI promulgated in 1962. Inclusion in the Code of a detailed framework for adjudicating the death sentence had the unintended effect of legitimating the decision of some U.S. states to retain rather than abolish the punishment, as Professor Franklin E. Zimring's detailed in The Unexamined Death Penalty: Capital Punishment and Reform of the Model Penal Code. Last spring, 2 other ALI members, Professors Ellen S. Podgor and Roger S. Clark, moved to have ALI state its opposition to capital punishment. Their motion sparked further debate, in the form of: a report from an Ad Hoc Committee on the possibility of future study of the death penalty, in a project separate from the sentencing project now under way; and, from now through this Sunday, November 25, conduct of an online forum on what to do next. Several ALI members already have weighed in on various sides, among them IntLawGrrls Elizabeth Hillman, Mary Coombs (our alumna), and yours truly. If you're an ALI member who hasn't yet done so, log on and add your 2¢ here.

On September 26, ...

... 2007 (today), celebrate the 7th annual European Day of Languages. The Council of Europe set aside the day to "alert the public to the importance of language learning," "increase awareness and appreciation of all languages," and "encourage lifelong language learning" -- goals that ought to extend beyond that 1 continent. Indeed, they do: counted among the 307 languages of the European Community ("20 of which have over 2000 speakers") are languages like "Japanese which for a majority of students may, in fact, be second rather than first languages." Join the festivities, perhaps by taking this Council quiz, or curling up with a copy of An Béal Bocht, Saga af bláum sumri, or the like.

... 1936, Nomzamo Winifred Zanyiwe Madikizela was born in a village in what was then called Transkei and is now the Eastern Cape Province of South Africa. She received a bachelor's degree in political science from the University of the Witwatersrand, Johannesburg. Upon becoming politically active in the anti-apartheid movement, she was 1st detained in 1958, the same year she married African National Congress leader Nelson Mandela (left). Thereafter she was frequently subjected to detention and banning orders, as well as 5 years' imprisonment. After her husband's release from prison in 1990, allegations of misconduct by Winnie Madikizela-Mandela surfaced. The couple were divorced in 1996; thereafter, she was convicted of fraud, though a 4-year prison sentence was suspended in 2004.

Sovereign Democracy?

In a couple of earlier posts (here and here), "Grace O'Malley" [IntLawGrrl Diane Marie Amann] and I discussed the fact that “democracy” has many meanings. Judy Dempsey writes in the Herald Tribune that Russia is now openly advocating a repressive political philosophy it calls “sovereign democracy”: subordinating democratic values to national interests. According to this “philosophy”, the foreign supervision Russia is subject to as a member of the Council of Europe (COE) and the Organization for Security and Cooperation in Europe (OSCE) is nothing more than foreign meddling in Russia’s internal affairs. Thus, Russia is currently blocking reforms at the European Court of Human Rights (ECHR) (at right), the court established in Strasbourg, France to hear human rights claims from individuals living in the 47 COE member states. Judges at the Court are seeking reforms to help deal with the 89,000-case backlog (while 90% of ECHR claims are dismissed as inadmissible, they still must be examined individually). Russia joined the court in 1996 and implemented the European Human Rights Convention in 1998. Since then, over 48,790 complaints have been filed against Russia – more than against any other country. Of those, 10,569 were lodged in 2006 alone, when the ECHR found 96 violations. As COE chair last year, Russia suggested the Council shift priorities away from human rights to education, culture, illegal migration, human trafficking and combating terrorism. Russia is also trying to curb election-monitoring activities undertaken by the Office for Democratic Institutions and Human Rights in Vienna. A division of the OSCE founded in 1976, the Office monitored elections in Georgia, Kyrgyzstan and Ukraine in which Russian-backed regimes were toppled by pro-democracy revolutions (below). Despite its criticisms of these organizations, however, Russia is not renouncing membership. Instead, it created the Collective Security Treaty Organization in 2003, which includes Armenia, Belarus, Kazakhstan, Kyrgyzstan, Tajikistan and Uzbekistan. Political cooperation and collective security are the main purposes; interference in member states' internal affairs is strictly forbidden. Russia is also supporting the Shanghai Cooperation Organization. which was founded in 2001 to fight terrorism and cross-border crime and, again, includes Russia and several Central Asian countries. This organization also directly competes with the Office for Democratic Institutions in observing elections. As Dempsey points out, this is a sad turn-around “for a rich and self-confident country that during the 1990s had fought hard to be accepted into Europe's human rights organizations”. While I cannot help but agree, I also cannot help but note that “Guantánamo”: from the camp itself to the Patriot Act, NSA wiretapping, CIA renditions and secret detention camps, abuse and disappearance of Muslim prisoners within the US, and withdrawing from the Optional Protocol to the Vienna Convention on Consular Relations to avoid scrutiny of our application of the death penalty to foreign citizens are all signs of a return to sovereign democracy here at home.

Globally Disappeared

Questions've been raised about the accuracy vel non of the term "Global War on Terror" almost since its inception. Is it correct, many ask, to label the campaign a "war"? Can one fight "terror"? Or ought the campaign target, rather, acts of terrorism? Though less has been said about the 1st word, 2 recent reports on persons who've been ghosted into secret detention counsel more consideration of the campaign's "global" nature.
Six NGOS -- Amnesty International, Cageprisoners, the Center for Constitutional Rights, the Center for Human Rights and Global Justice at New York University School of Law, Human Rights Watch, and Reprieve -- focus "Off the Record" on U.S. conduct. The report names more than 3 dozen persons -- including 1 woman and her 3 children, aged 6 months to 7 years -- whom they believe have been detained in secret. "'Enforced disappearances are illegal, regardless of who carries them out,'" said NYU's Meg Satterthwaite on release of the report, which points to violations of the International Covenant on Civil and Political Rights and of the Convention Against Torture, to which the United States is party, as well as the International Convention for the Protection of All Persons from Enforced Disappearance opened for signature in February.
As remarkable as the role of the United States in in this account is the involvement of intelligence agencies from other states. Nearly 2/3 of the seizures cited occurred in Pakistan, where the issue of disappearance has sparked unrest. Other countries of capture: Somalia, Afghanistan, United Arab Emirates, Iran, Sudan, and Georgia.
That last country, of course, is in Europe -- and a report to the Parliamentary Assembly of the Council of Europe indicates that Georgia was by no means the only European state involved in secret detention. Rapporteur Dick Marty named Poland and Romania as the location of CIA "black sites" for detainees believed to have high intelligence value. Neither country acted alone, in Marty's opinion; to the contrary, he concluded that they and other states aided the U.S. effort within the framework of a North Atlantic Treaty Organization "platform" agreement reached just weeks after the 9/11 attack (¶¶ 72-111). Marty attributed his ability to ferret out facts that states want to keep secret to the "dynamics of truth" -- often, a sense among Europeans that since President George W. Bush conceded the existence of the program he said he'd keep secret, they might as well tell the story, under promise of anonymity, from their perspective. He called for further inquiry, greater accountability, and a return to the rule of law:

We are fully aware of the seriousness of the terrorist threat and the danger it poses to our societies. ... The fight against terrorism must not serve as an excuse for systematic recourse to illegal acts, massive violation of fundamental human rights and contempt for the rule of law. ... [H]aving recourse to abuse and illegal acts actually amounts to a resounding failure of our system and plays right into the hands of the criminals who seek to destroy our societies through terror. ... [I]n the process, we give these criminals a degree of legitimacy -- that of fighting an unfair system .... (¶ 14)

(Next counterterrorism update: the status of accountability, at home and abroad.)